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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 186
April 16, 2005

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In search of a permanent attorney system for Bangladesh

Sheikh Hafizur Rahman Karzon

The prime concern of a government is to ensure common people's access to justice and good governance. Rule of law, needless to say, is a pre-condition of good governance, which cannot be ensured without a good legal system. In Bangladesh delay in the delivery of civil justice destroys confidence of the people. Administration of criminal justice is surrounded by many drawbacks. Among them police investigation and state attorney service have recently caught sight of the incumbents.

System of state attorneys
Attorney system is constituted of lawyers appointed and enjoined to look after the interest of the state. Without an efficient team of attorneys, government is not properly represented, particularly in criminal cases public interest remains uncared. In Bangladesh Government Pleaders (GP) are appointed to preserve the interest of the government in civil cases. They are assisted by Additional and Assistants GPs. The Public Prosecutors (PP) are appointed to represent the government in criminal cases. They are assisted by Additional and Assistant PPs. Besides them, the Attorney General work with Additional and Assistant Attorney Generals to represent the government in the Supreme Court of Bangladesh.

Administration of criminal justice, police investigation and system of state attorneys
Police investigates a criminal case and it ends with either a charge-sheet (a sheet containing the names who are involved in the commission of a crime), or a final report ( a report saying that the alleged crime has not committed and the individuals accused in the F.I.R. are not guilty.) The Police accomplish almost all the initial activities of a criminal case. Basing on this foundation Public Prosecutors cook up a case in a systematic way, which will bring the real criminals within the purview of the penal provisions. When preparing a case the Public Prosecutors take into account the F.I.R., Charge-sheet, Post-mortem Report, Inquest Report, Confessional statements and 'alamats' collected from the place of occurrence. They, with the assistance of their subordinates, take the role of prosecution on behalf of the government.

Countries like USA, UK, Canada, Australia, Japan etc. have very well-organised attorney system. After accomplishing all the initial activities, police submit their findings and documents to the state attorneys. They scrutinise the criminal cases and determine the merit. Criminal cases having insufficient merit are dropped. Through this process of scrutiny state attorneys reject forty to fifty per cent of criminal cases submitted to them. It saves the time of the court and keeps concerned individuals free from cumbersome situation. The state attorneys bring to the court those cases, which have sufficient merit and in ninety eighty per cent cases they become successful.

In Bangladesh the police is corrupt and their investigation is faulty. Most of the criminal cases do not get strong foundation because of the weak investigation. The attorney system in Bangladesh is also inefficient and corrupt. The state attorneys (PPs, GPs, and their subordinates) are appointed on political consideration. The party in power appoints those lawyers as state attorneys, who are affiliated with their party. They are changed with the change of the government. Because of the transitory nature of attorney service they are inefficient and not committed to preserve the interest of the community.

The attorneys are state lawyers as well as private lawyers as they have double capacity. They get scanty amount in government cases and cannot give proper attention. As a result government remains least-represented or non-represented in civil cases and loses huge properties, which can be translated into crores of money. In criminal cases accused having power and money influence police and state attorneys. The situation has worsened to such an extent that one Public Prosecutor brought a criminal (accused in a criminal case) in his car and made all the arrangements for his bail. Because of this deterioration, the influential accused, white-collar criminals, and god fathers remain free. After committing crimes they are take the advantage of faulty police investigation and weak state attorney system. As a result, they are released on bail or come out of the prison. They intimidate the family members of the victim, influence different agencies of criminal justice system, and destroy or fabricate the evidence. Ultimately the criminal cases become a farce.

Criminal justice administration in Bangladesh does not have any mechanism to compromise the cases between the parties. At least twenty to thirty per cent cases could have been minimised through this mechanism. Moreover, we lack a system of scrutiny under which police could submit their cases to the state attorneys, they would then scrutinise and drop weak and unnecessary cases.

Possible way out
Civil and criminal justice administration of any country is very important as it is the last resort of the common people. State must have mechanism for alternative dispute resolution as well as dispute resolution. The disputes may be resolved by amicable settlement without involving a court of law. That is ideal condition for properly civilised individuals ensuring a win-win situation. Option should be open for unsuccessful parties to go to a court of law for resolving the disputes.

Procrastination of the cases is the main problem of the administration of civil justice. Overburdened courts, taking time by the advocates, corruption of the lower echelon of the civil courts, difficulty to preserve the documents-- all these create a fibre of inextricable knot.

Various types of problems, as mentioned earlier, have impinged on the criminal justice administration of Bangladesh. When any crime is committed, sense of 'pity and probity' of the common people is offended. Not only the victims, but the state becomes aggrieved due to the commission of offence. The law casts heavy duty on the state to bring the real culprits before a court of law. On behalf of the state, the police, state attorneys, and criminal court act to outweigh the mischief done by the crime. Investigation of police constructs the foundation on the basis of which the state attorneys arrange a case. Criminal Courts examine the prosecution and defence witnesses, verify the documents to determine the veracity of the case and identify the criminals. Finally the courts pronounce their verdict to penalise the delinquents, and try to minimise the grievances unleashed by the commission of the offence.

The police are busy with maintaining law and order. For that reason they cannot give much attention to investigation of criminal cases. Government may introduce a separate department of police for investigation. Under the existing dispensation of police an officer is enjoined to accomplish many activities including investigation. As a result he cannot concentrate on investigation. This separate department of police must be introduced with a check and balance system so that corruption cannot infiltrate into it.

After thorough investigation the police will submit the criminal cases to the state attorneys. They will examine and determine the merit of the cases. First, they will drop those cases, which do not have sufficient merit. Secondly, in possible cases they will try to settle the cases amicably with the assistance of both the parties. The state attorneys, then, cock up the cases having merit and bring those cases before the courts.

The existing state attorneys cannot dispose of this task properly. It requires a new set of committed and efficient lawyers. Present government is considering to introduce a permanent attorney system, which is prevalent in developed countries. Under the new system the state attorneys will be recruited through Public Service Commission. The law graduates will have to attend competitive examination [for example examination for BCS (state attorney) cadre] and the successful candidates will be appointed as state attorneys. This efficient team of state attorneys will preserve the public interest far better than the existing set-up.

The state attorneys will be stratified into two categories: first, the Supreme Court Attorneys and second, the District Attorneys. Attorney General, as it is now, will be the chief of the attorneys of the Supreme Court and be assisted by Additional, Deputy and Assistant Attorney Generals. In districts, the District Attorney General will be the chief of the District Attoneys. S/he will work with the assistance of Additional, Joint and Assistant District Attorneys. There will be an office of Directorate General of District Attorneys in Dhaka under the authority of the Law Ministry. It will be the headquarter of the District Attorney offices. The office of the Attorney General of the Supreme Court will remain as a constitutional office as it is now. The Assistant District Attorneys and the Assistant Attorney Generals of the Supreme Court will be recruited by the Public Service Commission.

Criminal justice need to be addressed as a whole
The incumbents are considering to bring some changes into the existing criminal justice administration. They want to make it speedy and dynamic. Their intention and initiative are praiseworthy. But they ought to ponder the administration of criminal justice as a whole, not in piecemeal. They consider to introduce separate department of police for investigation and a permanent state attorney service. But these initiatives are not enough. They may consign the Law Commission to prepare new penal laws and introduce inquisitorial system in the place of accusatorial system. The British concept of adversary system is very old. We have to change our mind-set and legal culture. We also need to introduce alternative dispute resolution. After recasting the whole system, we may fairly expect that criminal justice will be administered to keep a balance between the right of the accused and the interest of the innocent as well as the interest of the whole community.

Concluding remarks
The penal policy of Bangladesh is a mix of retributive, deterrent, and preventive theories of punishment. We lag far behind the civilised standard. Before making any change into the criminal justice system, we ought to revise our present penal policy. We should incorporate progressive ideas into the penal policy to suit with the changing demands of twenty first century.

The author is a Lecturer, Department of Law, University of Dhaka.


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